Citation Nr: 0705334
Decision Date: 02/23/07 Archive Date: 02/27/07
DOCKET NO. 00-21 041 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an increased rating for residuals of a
shell fragment wound of the right (major) arm (Muscle Group
VI) with retained foreign bodies, currently evaluated as 10
percent disabling.
2. Entitlement to an increased rating for neuropathy of the
right ulnar nerve, evaluated as 10 percent disabling prior to
February 23, 2005, and as 30 percent disabling from February
23, 2005.
REPRESENTATION
Appellant represented by: American Red Cross
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Barone, Counsel
INTRODUCTION
The veteran had active service from December 1967 to November
1969.
This matter comes before the Board of Veterans' Appeals
(Board) from a March 2000 rating decision of the Department
of Veteran's Affairs (VA) Regional Office (RO) in Houston,
Texas.
In April 2001, the veteran testified at a videoconference
hearing held at the RO. A transcript of this hearing is
associated with the claims file. The Veterans Law Judge who
presided over that hearing is no longer employed by the
Board. In August 2003 the veteran was sent a letter advising
him that the Veterans Law Judge who presided over the April
2001 hearing was no longer employed by the Board and asked
him to clarify whether he desired another hearing before the
Board. The letter stated that if he did not reply within 30
days from the date of the letter, the Board would assume that
he did not want another hearing. The veteran did not
respond.
The case was remanded in July 2001 and October 2003 for
development of the record. It was most recently returned to
the Board in February 2007 for appellate consideration.
FINDINGS OF FACT
1. The residuals of a shell fragment wound of the right
(major) arm (Muscle Group VI) are manifested by no more than
moderate disability of the extensor muscles of the elbow.
2. For the period prior to February 23, 2005, neuropathy of
the right ulnar nerve was manifested by no more than mild
incomplete paralysis.
3. For the period beginning February 23, 2005, neuropathy of
the right ulnar nerve is manifested by no more than moderate
incomplete paralysis.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for residuals of a shell fragment wound of the right arm
(Muscle Group VI) have not been met.
38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. § 4.71, Diagnostic
Code 5306 (2006).
2. For the period prior to February 23, 2005, the criteria
for an evaluation in excess of 10 percent for neuropathy of
the right ulnar nerve were not met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8516 (2006).
3. For the period beginning February 23, 2005, the criteria
for an evaluation in excess of 30 percent for neuropathy of
the right ulnar nerve have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8516
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005);
38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable RO decision on a
claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004);
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486.
In the present case, the veteran's claim was received in
January 2000, before the enactment of the VCAA. A letter
dated in November 2002 told the veteran of the actions taken
by the RO. The veteran was instructed to provide information
pertaining to his health care providers.
A February 2004 letter discussed the evidence necessary to
establish entitlement to higher ratings. The veteran was
asked to submit or identify evidence in support of his claim.
The letter indicated the evidence that had been received, and
told the veteran of the assistance VA would provide in
obtaining additional evidence.
A September 2006 letter provided information pertaining to
how VA establishes disability ratings and effective dates.
The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless error. Although the
notices were provided to the veteran after the initial
adjudication, the veteran has not been prejudiced thereby.
The content of the notice provided to the veteran fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only
has the veteran been provided with every opportunity to
submit evidence and argument in support of his claims and to
respond to VA notices, but the actions taken by VA have
essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the veteran has been
afforded a meaningful opportunity to participate effectively
in the processing of his claims.
As the Federal Circuit Court has stated, it is not required
"that VCAA notification must always be contained in a single
communication from the VA." Mayfield, supra, 444 F.3d at
1333. For the foregoing reasons, it is not prejudicial to
the appellant for the Board to proceed to finally decide this
appeal.
In addition, identified treatment records have been obtained
and associated with the record. VA examinations have been
conducted. The veteran has been afforded the opportunity to
testify before a Veterans Law Judge. Neither the veteran nor
his representative has identified any additional evidence or
information which could be obtained to substantiate the
claim. The Board is also unaware of any such outstanding
evidence or information.
Although the veteran's representative has expressed concern
that x-rays were not obtained during the veteran's most
recent VA examination, the report of that examination
reflects that they were scheduled, but that the veteran left
before they were taken. "The duty to assist is not always a
one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193
(1991). If the veteran wished to fully develop his claim, he
had a corresponding duty to assist by submitted to the
necessary diagnostic studies. The Board therefore holds that
the VA has fulfilled its duty to assist him by providing him
the opportunity to submit to x-rays following his most recent
VA examination, and that an additional remand is not
warranted.
Furthermore, as will be discussed in greater detail below,
the veteran had undergone numerous VA orthopedic and
neurological examinations since 2000, and these examinations
have consistently shown no evidence of significant impairment
of Muscle Group VI, and no more than moderate paralysis of
the ulnar nerve. The Board finds that these examinations
have provided adequate clinical findings so as to properly
evaluate his service-connected disabilities under the
applicable diagnostic codes, and that no further examinations
or diagnostic tests are necessary to decide this appeal.
Therefore, the Board is also satisfied that the RO has
complied with the duty to assist requirements of the VCAA and
the implementing regulations.
Factual Background
The available service medical records indicate that in July
1968 the veteran incurred shell fragment wounds to the right
arm and the right forearm, as well as other parts of the body
that are not currently in contention. Those injuries were
reported as history when the veteran was hospitalized for
psychiatric treatment in December 1968; the medical records
pertaining to the treatment administered at the time of the
injury are not of record and are apparently not available.
The December 1968 treatment records indicate that he was
hospitalized for approximately three months following the
shrapnel injury and then returned to his unit. After being
returned to his unit the veteran demonstrated psychiatric
symptoms and was then hospitalized in November 1968 for a
psychiatric evaluation. A neurological examination at that
time was normal, but the physical examination revealed scars
on the right wrist and right upper arm.
During March 1970 VA examinations the veteran reported that
the shrapnel wounds to the right forearm had resulted in
damage to a nerve, for which he underwent surgical treatment.
His only complaints pertained to sensitivity in the area of
the scars on the right wrist and forearm. Examination of the
right arm above the elbow revealed two shrapnel wound scars
on the distal third of the arm, each measuring approximately
2.5 by 1.5 centimeters. Both scars were well healed with
minimal damage to the underlying muscular structures.
Examination of the right forearm disclosed a 6.5 inch
surgical scar on the ulnar aspect of the lower part of the
right forearm that was sensitive to palpation. There was no
evidence of significant damage to the underlying musculature.
A neurological examination showed hyperesthesia on the ulnar
aspect of the dorsum of the right hand, including the ring
and little fingers; no muscle weakness or atrophy; no
deformity of the hand; and normal reflexes. The examinations
resulted in diagnoses of multiple shrapnel fragment wound
scars to the right arm, with retention of metallic foreign
bodies in the subcutaneous tissues, mild residuals; a
sensitive shrapnel fragment wound scar of the right forearm,
with resultant nerve injury and retention of metallic foreign
bodies; and neuropathy of the dorsal branch of the right
ulnar nerve, chronic, mild.
On VA orthopedic examination in May 1974, the examiner noted
the presence of two scars in the right upper arm. One was
measured at about three centimeters, and the examiner
indicated that it represented a surgical incision used for
removal of a piece of fragment. The second scar was about
one half inch posterior to the first, and was a two and one
half inch centimeter scar which was noted to represent the
entrance wound of a piece of shrapnel. The second scar was
well-healed with minimal damage to the underlying soft tissue
structures. The biceps were equal in measurement. There was
full range of motion involving the elbow joint. Examination
of the right forearm revealed a small two centimeter shrapnel
fragment wound scar in the midportion of the forearm on the
ulnar aspect, and a five inch irregular longitudinally placed
scar extending to the bend of the wrist representing a
shrapnel fragment wound and possibly a surgical incision.
There was full range of all motion involving the wrist and
all finger joints. The impression was shrapnel fragment
wound, right arm, healed, minimal residuals, retention of
metallic foreign bodies; postoperative scar of the right arm,
excision of metallic fragment; and multiple shrapnel fragment
wound scars, right forearm, healed, mild residual disability.
A May 1974 VA neurological examination revealed surgical
scars on the right forearm. The area was hypersensitive to
touch and pinprick. There was impairment of superficial
sensation on the ulnar border of the hand. There was no
sensory deficit in the palm. There was no deformity,
weakness, atrophy, or limitation of motion. Deep tendon
reflexes were normal. The diagnosis was right ulnar
neuropathy, caused by trauma, chronic, mild.
A VA general surgery examination conducted in April 1978
revealed a three centimeter scar three inches above the
olecranon process overlying the triceps musculature. The
veteran reported that the scar represented an exit wound of a
through-and-through piece of shrapnel. The examiner noted
that the entrance wound was represented by a similar scar,
two inches posteriorly and medially. That scar was well-
healed. The right arm measured one half inch greater than
the left arm. Examination of the forearm revealed the
presence of a six-inch curvilinear scar extending from the
hypothenar eminence upward along the ulnar aspect of the
wrist and forearm. It was very sensitive to the touch. A
small shrapnel fragment wound was noted about two inches
above the superior edge of the scar, overlying the flexor
musculature. The right forearm measured the same as the
left. The veteran reported that some retained fragments were
removed in 1971 or 1972. The impression was through-and-
through shrapnel fragment wound of the right arm, healed
scars, mild residuals; and multiple shrapnel fragment wound
scars of the right forearm, with history of ulnar nerve
involvement, residual neurological symptoms.
A VA neurological examination was also carried out in April
1978. The examiner noted that the veteran had been shot in
the right forearm in Vietnam. The veteran reported that he
could not presently hold a spoon, though he could hold a fork
and knife. He related that he was able to drive a car.
Examination revealed a painful sensation on touching the
ulnar surface of the right forearm near the carpals.
However, motor function was intact. The ultimate strength of
muscle testing could not be performed due to the veteran's
complaint of pain on wrist extension against resistance. The
veteran was able to flex and extend the wrist and abduct and
adduct the fingers and thumb, and there was no evidence of
paralysis. The diagnosis was post-traumatic causalgia, right
forearm.
On VA general surgical examination in July 1979, there was a
three by one centimeter scar several inches above the bend of
the elbow on the right. It was superficial, well healed, and
presented no abnormalities. There was no significant damage
to the underlying extensive muscles of the arm. Examination
of the forearm revealed a five inch scar extending from the
wrist upwards, along the ulnar aspect of the forearm. It was
very sensitive to the touch. The examiner noted that an X-
ray of the area had indicated retained metallic foreign
bodies. The diagnoses included shrapnel fragment wound scar
of the right arm, healed with non-disabling residuals; and
multiple shrapnel fragment wound scars, right forearm, with
retention of metallic foreign bodies.
The report of a VA neurological examination conducted in July
1979 indicates the veteran's complaint of cramps in the right
hand with use, and some weakness of grip. He also reported
some tingling numbness in the fourth and fifth fingers. The
examiner noted that the scar on the veteran's forearm was
somewhat sensitive to touch. There was some weakness
suggestive of ulnar nerve lesion. There was mild weakness of
the abductors and adductors of the fingers in the right hand.
There was decreased pinprick in the distribution of the ulnar
nerve. There was no atrophy or fasciculation in the hand
muscles. The impression was ulnar nerve lesion secondary to
gunshot wound in 1968 manifested by motor and sensory signs
of the ulnar nerve distribution.
A VA hand examination was carried out in March 2000. The
veteran reported that he remained symptomatic regarding the
shrapnel fragment wound that entered the right wrist over the
ulnar aspect. He endorsed tenderness to touch over the local
region and a history of difficulty with full range of motion
due to sensations of pulling. He indicated that the shrapnel
fragment wound to the distal right upper arm was only locally
symptomatic. Physical examination revealed a long curved
incision along the ulnar aspect of the distal forearm and
wrist which was very sensitive to touch. There was muscular
atrophy in the hypothenar musculature. There was no muscular
atrophy in the first dorsal interosseous muscle group. The
veteran had good range of motion of the digits with full
abduction, adduction, flexion and extension. He asserted
difficulty with dorsiflexion and volar flexion past 45
degrees due to local pain and sensations of pulling. X-ray
examination revealed shrapnel fragments over the volar,
midline wrist, ulnar mid-shaft forearm, and anterior medial
distal one-third of the upper arm. The impression was
shrapnel fragment wound right arm with local discomfort; and
ulnar neuropathy, hypothenar branch with muscular atrophy and
dysthesias.
An orthopedic examination was carried out in October 2001.
The examiner noted that he had assessed the veteran in March
2000, and the veteran stated that since that examination he
had experienced no change in the function. His main
complaints included local pain to touch over the ulnar aspect
of the right wrist and limited motion due to sensations of
pulling. When asked about the remaining shrapnel fragment
wounds in the right arm, he indicated that the other scars
were nontender. When asked to describe any particular
functional deficits or limitations due to the shrapnel
fragment wounds in the upper extremities, his only complaint
was diminished sensation to the ulnar aspect of the right
hand and tenderness to palpation over the wrist wound. Range
of motion testing revealed dorsiflexion to 70 degrees, volar
flexion to 58 degrees, radial deviation to 20 degrees and
ulnar deviation to 45 degrees. Examination of the right hand
revealed no evidence of interosseous atrophy. There was
tenderness to palpation along the ulnar side of the wrist
wound and the distal forearm wound. The veteran had
diminished sensation through the ulnar sensory nerve
distribution. Range of motion of the digits was not limited.
There was no evidence of muscle defect. The examiner also
noted a three centimeter scar along the upper arm in the
distal aspect of the posterior lateral distribution, but the
scar was nontender with no evidence of underlying muscle
defect. The impression was shrapnel fragment wound, right
distal forearm with local pain; ulnar neuropathy, hypothenar
branch, right, with mild muscular atrophy in the hypothenar
region and dysthesias; and shrapnel fragment wounds to the
right arm with minimal residual discomfort including the
proximal right forearm and upper arm. The examiner
emphasized that there was no evidence of loss of power,
weakness, lower threshold or fatigue, or impairment of
coordination due to the shrapnel fragment injuries. The
veteran was noted to have pain to palpation over the ulnar
aspect of the right wrist and forearm. He indicated that the
veteran described no additional degree of discomfort
resulting from extended use or during flare-ups, but that the
discomfort remained the same at all times.
The veteran was afforded an additional VA neurological
examination in November 2001. The examiner noted that he had
difficulty obtaining a complete and reliable history from the
veteran. The veteran complained of excessive sensitivity in
the area of the right wrist scar. He denied weakness in the
hand or wrist. Physical examination revealed a scar on the
medial aspect of the right wrist extending a few centimeters
up to the lower part of the forearm. The examiner noted that
the scar was in the region of the right ulnar nerve. The
veteran had some decreased pinprick in the right hand in an
ulnar nerve distribution. The entire skin overlying the scar
was hyperesthetic to touch. Range of motion of the wrist
appeared full. There was minimal abductor digiti quinti
muscle atrophy but no weakness in the right hand. The
diagnosis was traumatic injury to the right ulnar nerve at
the level of the wrist with residuals of decreased sensation
in the ulnar distribution of the right hand, as well as
hyperesthetic pain when the right wrist area is touched. The
examiner indicated that there was no weakness or restriction
of range of motion of the right wrist.
On VA examination in February 2005, the veteran reported that
he had sustained a shrapnel injury involving the right
forearm in 1968. The veteran complained of severe
hyperesthesia around the ulnar border of the right wrist
since the initial injury. He stated that even the slightest
touch to that area caused severe pain. He also reported
persistent numbness in and around the operative scar. He
indicated that he had limitations of the right hand secondary
to hyperesthesia and hyperalgesia around the site of the
injury. However, he related that he was able to manage all
activities of daily living without assistance. On motor
system examination tone and bulk appeared normal and
symmetric bilaterally with no significant atrophy noted in
the right hand. Strength testing was difficult to perform
secondary to give way weakness in the bilateral upper
extremities. However, at least 4+/5 strength was estimated
bilaterally. There was no pronator drift suggesting equal
strength bilaterally. Sensory examination was significant
for decreased light touch, pin prick, and temperature
perception over the right ulnar nerve distribution.
Significant hyperesthesia was noted around the surgical scar.
A well-healed scar was noted on the ulnar border of the
distal right forearm, extending from the wrist up to
approximately six and one half inches. Range of motion of
the wrist was full. The impression was post-traumatic right
ulnar neuropathy at the wrist, incomplete, moderate
disability, stable. The examiner noted that the veteran had
residual significant hyperesthesia around the site of the
surgery and had impaired sensations in the distribution of
the right ulnar nerve, suggestive of an injury at the wrist.
He indicated that there was no associated motor weakness and
that the injury was therefore incomplete. He concluded that
the overall disability appeared to be moderate.
A VA orthopedic examination was completed in February 2006.
The veteran reported that he had pain to touch around the
area of the right wrist and hand. He also complained of
numbness of the fourth and fifth fingers. He related that he
had trouble gripping things due to the numbness. He
indicated that he had pain at the area of the scar on the
lateral wrist and that significant lifting could product
pain. He provided no specific history of weakness involving
the hand. He reported that he was able to manage daily
activities with no specific problems. He did not indicate
that repeated motion or use of the hand caused any particular
problem or increased pain. He named cold weather as an
exacerbating factor. Range of motion testing revealed elbow
flexion from zero to 145 degrees, forearm supination from
zero to 85 degrees, and forearm pronation from zero to 80
degrees. Wrist dorsiflexion was to 70 degrees, palmar
flexion was to 80 degrees, radial deviation was to 20
degrees, and ulnar deviation was to 45 degrees. The veteran
complained of tenderness in the lateral aspect of the wrist
with ulnar deviation. The examiner noted that there was
tenderness to palpation of the forearm scar, and that there
was some indication of possible muscle damage but it was
difficult to ascertain exactly what muscles were affected.
He suggested that it could be the abductor pollicis longus
muscle or that it could also be a connective tissue deficit.
The fingers of the right hand revealed full range of motion,
and the veteran could make a fist and abduct the thumb across
the palm and touch the distal fifth metacarpal. Touch
sensation along the hand revealed numbness in the ulnar
distribution and there was some weakness in the fourth and
fifth fingers with grasping. The veteran had normal flexion
and extension against force and had normal external and
internal rotation strength of the forearm. Repeated motion
did not create any increase in symptoms of pain or
paresthesia. There was no decrease in strength of grasp,
dorsiflexion, or palmar flexion on repeated motion. X-rays
were ordered; however, the veteran was noted to leave
radiology before being called for examination. The examiner
indicated that the veteran suffered from increased sensation
around the site of the scar on the lateral aspect of the
right forearm and wrist, in an ulnar distribution. He also
noted that the veteran had decreased sensation to pinprick in
the ulnar distribution of the fourth and fifth fingers and to
the ulnar distribution along the lateral aspect of the hand
in the metacarpal area. He related that there was no
indication of muscle weakness in the wrist, forearm, or hand.
He noted that the sensation of numbness did have a tendency
to be related to the complaint of lack of grasping. He
stated that he could not indicate that the veteran had an
increased amount of disability over what had been found on
previous examinations. With respect to muscle injury, he
noted that there was no functional issue involved with any
muscle injury and there was no indication of specific atrophy
of any muscle groups in the forearm, wrist, or hand. He
also indicated that there was no strength deficit in any
aspect of the use of the muscles in the forearm, wrist, or
hand and that the main dysfunction seemed to be paresthesia
in the fourth and fifth fingers which created a decrease in
grasping and holding abilities.
Analysis
The record establishes that the veteran is right hand
dominant. Accordingly, the disabilities at issue are
evaluated based on impairment of the major upper extremity.
38 C.F.R. § 4.69 (2006).
Disability evaluations are determined by application of a
schedule of ratings that is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ Part 4. Separate diagnostic codes identify the various
disabilities.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
38 C.F.R. §§ 4.1, 4.2 (2006); see also Francisco v. Brown, 7
Vet. App. 55 (1994).
The governing regulations provide that the higher of two
evaluations will be assigned if the disability more closely
approximates the criteria for that rating. Otherwise, the
lower rating is assigned. 38 C.F.R. § 4.7 (2006).
The veteran is currently service-connected for the residuals
of shrapnel fragment wounds to the right arm. Such wounds
often result in impairment of muscle, bone and/or nerve.
Through and through wounds and other wounds of the deeper
structures almost invariably destroy parts of muscle groups.
See 38 C.F.R. § 4.47 (2006). Muscle Group damage is
categorized as slight, moderate, moderately severe and/or
severe and evaluated accordingly under 38 C.F.R. § 4.56.
Evaluation of residuals of gunshot wound injuries includes
consideration of resulting impairment to the muscles, bones,
joints and/or nerves, as well as the deeper structures and
residual symptomatic scarring. 38 C.F.R. §§ 4.44, 4.45,
4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54 (2006). In
considering the residuals of such injuries, it is essential
to trace the medical-industrial history of the disabled
person from the original injury, considering the nature of
the injury and the attendant circumstances, and the
requirements for, and the effect of, treatment over past
periods, and the course of the recovery to date. 38 C.F.R. §
4.41 (2006).
For rating purposes, the skeletal muscles of the body are
divided into 23 muscle groups in 5 anatomical regions, which
include six muscle groups for the pelvic girdle and thigh
(Diagnostic Codes 5313 through 5318). 38 C.F.R. § 4.55(b).
For muscle group injuries in different anatomical regions
which do not act upon ankylosed joints, each muscle group
injury shall be separately rated and the ratings combined
only under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. §
4.55(f). For compensable muscle groups which are in the same
anatomical region but do not act on the same joint, the
evaluation of the most severely injured muscle group will be
increased one level and used as the combined evaluation for
the affected muscle groups. 38 C.F.R. § 4.55(e).
38 C.F.R. § 4.56 provides as follows:
(a) An open comminuted fracture with
muscle or tendon damage will be rated as
a severe injury of the muscle group
involved unless, for locations such as in
the wrist or over the tibia, evidence
establishes that the muscle damage is
minimal; (b) A through-and-through injury
with muscle damage shall be evaluated as
no less than a moderate injury for each
group of muscles damaged; (c) For VA
rating purposes, the cardinal signs and
symptoms of muscle disability are loss of
power, weakness, lowered threshold of
fatigue, fatigue-pain, impairment of
coordination and uncertainty of movement;
(d) Under diagnostic codes 5310 through
5312, disabilities resulting from muscle
injuries shall be classified as slight,
moderate, moderately severe or severe as
follows:
(1) Slight disability of muscles. (i)
Type of injury. Simple wound of muscle
without debridement or infection. (ii)
History and complaint. Service
department record of superficial wound
with brief treatment and return to duty.
Healing with good functional results. No
cardinal signs or symptoms of muscle
disability as defined in paragraph (c) of
this section. (iii) Objective findings.
Minimal scar. No evidence of fascial
defect, atrophy, or impaired tonus. No
impairment of function or metallic
fragments retained in muscle tissue.
(2) Moderate disability of muscles. (i)
Type of injury. Through and through or
deep penetrating wound of short track
from a single bullet, small shell or
shrapnel fragment, without explosive
effect of high velocity missile,
residuals of debridement, or prolonged
infection. (ii) History and complaint.
Service department record or other
evidence of in-service treatment for the
wound. Record of consistent complaint of
one or more of the cardinal signs and
symptoms of muscle disability as defined
in paragraph (c) of this section,
particularly lowered threshold of fatigue
after average use, affecting the
particular functions controlled by the
injured muscles. (iii) Objective
findings. Entrance and (if present) exit
scars, small or linear, indicating short
track of missile through muscle tissue.
Some loss of deep fascia or muscle
substance or impairment of muscle tonus
and loss of power or lowered threshold of
fatigue when compared to the sound side.
(3) Moderately severe disability of
muscles. (i) Type of injury. Through
and through or deep penetrating wound by
small high velocity missile or large low-
velocity missile, with debridement,
prolonged infection, or sloughing of soft
parts, and intermuscular scarring. (ii)
History and complaint. Service
department record or other evidence
showing hospitalization for a prolonged
period for treatment of wound. Record of
consistent complaint of cardinal signs
and symptoms of muscle disability as
defined in paragraph (c) of this section
and, if present, evidence of inability to
keep up with work requirements. (iii)
Objective findings. Entrance and (if
present) exit scars indicating track of
missile through one or more muscle
groups. Indications on palpation of loss
of deep fascia, muscle substance, or
normal firm resistance of muscles
compared with sound side. Tests of
strength and endurance compared with
sound side demonstrate positive evidence
of impairment.
(4) Severe disability of muscles. (i)
Type of injury. Through and through or
deep penetrating wound due to high-
velocity missile, or large or multiple
low velocity missiles, or with shattering
bone fracture or open comminuted fracture
with extensive debridement, prolonged
infection, or sloughing of soft parts,
intermuscular binding and scarring. (ii)
History and complaint. Service
department record or other evidence
showing hospitalization for a prolonged
period for treatment of wound. Record of
consistent complaint of cardinal signs
and symptoms of muscle disability as
defined in paragraph (c) of this section,
worse than those shown for moderately
severe muscle injuries, and, if present,
evidence of inability to keep up with
work requirements. (iii) Objective
findings. Ragged, depressed and adherent
scars indicating wide damage to muscle
groups in missile track. Palpation shows
loss of deep fascia or muscle substance,
or soft flabby muscles in wound area.
Muscles swell and harden abnormally in
contraction. Tests of strength,
endurance, or coordinated movements
compared with the corresponding muscles
of the uninjured side indicate severe
impairment of function. If present, the
following are also signs of severe muscle
disability: (A) X-ray evidence of minute
multiple scattered foreign bodies
indicating intermuscular trauma and
explosive effect of the missile. (B)
Adhesion of scar to one of the long
bones, scapula, pelvic bones, sacrum or
vertebrae, with epithelial sealing over
the bone rather than true skin covering
in an area where bone is normally
protected by muscle. (C) Diminished
muscle excitability to pulsed electrical
current in electrodiagnostic tests. (D)
Visible or measurable atrophy. (E)
Adaptive contraction of an opposing group
of muscles. (F) Atrophy of muscle groups
not in the track of the missile,
particularly of the trapezius and
serratus in wounds of the shoulder
girdle. (G) Induration or atrophy of an
entire muscle following simple piercing
by a projectile.
38 C.F.R. § 4.56.
A muscle injury rating will not be combined with a peripheral
nerve paralysis rating of the same body part, unless the
injuries affect entirely different functions. 38 C.F.R. §
4.55(a) (2006).
Shrapnel Fragment Wound to the Right Arm
The veteran is in receipt of a 10 percent evaluation for a
shrapnel fragment wound to the right arm. Specifically, the
evaluation pertains to injury of Muscle Group (MG) VI, or the
extensor muscles of the elbow. The 10 percent evaluation
contemplates moderate muscle disability, characterized by
some loss of deep fascia or muscle substance or impairment of
muscle tonus and loss of power or lowered threshold of
fatigue when compared to the sound side.
Having carefully reviewed the evidence pertaining to this
service-connected disability, the Board has concluded that a
higher evaluation is not for application. In this regard,
the Board notes that service records do not show that the
shrapnel wound resulted in prolonged infection, sloughing of
soft parts, or bone fracture. Furthermore, numerous VA
examinations conducted since separation demonstrate that
there is no significant damage to the extensor muscles of the
arm. For example, repeated examination has shown no evidence
of abnormal hardening or swelling of the muscles on
contraction, and no visible atrophy of the muscle grouped.
The veteran has reported that the associated scars are
nontender, and those scars have not been found to be either
depressed or adherent on objective examination. There is no
evidence that the scars or any currently present muscle
damage causes functional impairment, and repeated VA
examination since 2000 has shown range of motion of the elbow
to be full.
There is also no evidence that the veteran's left arm
disorder causes functional loss as described in DeLuca v.
Brown, 8 Vet. App. 202 (1995), and 38 C.F.R. §§ 4.40, 4.45
(2006). As noted above, range of motion of the veteran's
elbow is full, with no evidence of impairment of strength or
endurance relative to the shrapnel fragment wound.
Further, the associated scars are not shown to warrant an
additional rating (not tender, not sufficiently large). See
38 C.F.R. § 4.118 (2002 & 2005).
The Board finds that the symptoms and objective findings
shown in this case are indicative of no more than moderate
muscle disability. Accordingly, entitlement to an increased
rating is denied.
Right Ulnar Neuropathy
The veteran is in receipt of service connection for right
ulnar neuropathy as residual of a shrapnel fragment wound to
his right forearm.
Disability related to a neurological condition is ordinarily
to be rated in proportion to the impairment of motor,
sensory, or mental functions, especially complete or partial
loss of use of one or more extremities, speech disturbances,
impairment of vision, disturbances of gait, tremors, visceral
manifestations, etc. In rating peripheral nerve injuries and
the residuals of such, attention should be given to the site
and character of the injury, the relative impairment in motor
function, trophic changes, or sensory disturbances. 38
C.F.R. § 4.120 (2006).
For diseases of the peripheral nerves, disability ratings are
based on whether there is complete or incomplete paralysis of
the particular nerve. The term "incomplete paralysis"
indicates a degree of lost or impaired function substantially
less than the type pictured for complete paralysis given with
each nerve, whether due to varied level of the nerve lesion
or to partial regeneration. 38 C.F.R. § 4.124a.
The veteran's right ulnar neuropathy is evaluated pursuant to
38 C.F.R. § 4.124a, Diagnostic Code 8516, which contemplates
various levels of paralysis of the ulnar nerve. Complete
paralysis of the ulnar nerve produces a "griffin claw"
deformity due to flexor contraction of the ring and little
fingers, very marked atrophy in the dorsal interspace and
thenar and hypothenar eminences, loss of extension of the
ring and little fingers, cannot spread the fingers (or
reverse), cannot adduct the thumb, and weakened flexion of
the wrist. It is rated as 60 percent disabling in the major
upper extremity. Severe incomplete paralysis in the major
upper extremity is rated as 40 percent disabling; moderate
incomplete paralysis in the major upper extremity is rated as
30 percent disabling; and mild incomplete paralysis in the
major upper extremity is rated as 10 percent disabling.
The evidence pertaining to the period prior to February 23,
2005 shows that the veteran's pertinent complaint was
diminished sensation to the ulnar aspect of the right hand
and tenderness to palpation over the wrist wound. The Board
notes that the veteran is in receipt of a separate evaluation
for the scar on the right forearm, and that such evaluation
is not currently at issue. Repeated VA examination during
the period prior to February 23, 2005, showed that range of
motion of the veteran's right wrist was full. While there
was muscle atrophy noted during the November 2001 VA
examination, it was described as minimal. Other VA
examinations prior to February 2005 showed no evidence of
atrophy, and VA examination throughout this period
consistently showed no weakness in the right hand. The
evidence does not reflect moderate incomplete paralysis. The
Board has therefore concluded that an evaluation in excess of
10 percent for the period prior to February 23, 2005 is not
warranted.
With respect to the period beginning February 23, 2005, the
Board concludes that an evaluation in excess of 30 percent
for neuropathy of the right ulnar nerve is not warranted. In
order to warrant a 40 percent evaluation, there must be
severe incomplete paralysis of the affected nerve.
The Board notes that at the time of the February 2005 VA
examination the veteran complained of severe pain and
limitations of his right hand secondary to neuropathy.
However, he also indicated that he was able to perform all
activities of daily living without assistance, and that
objective findings indicated no significant atrophy in the
right hand and 4+/5 strength. Range of motion of the wrist
was full. The examiner concluded that there was moderate
incomplete paralysis. On VA examination in February 2006,
there was weakness of the fourth and fifth fingers with
grasping. There was no specific atrophy of any muscles of
the forearm, wrist, or hand, and there was no strength
deficit. A decrease in grasping and holding abilities was
attributed to paresthesia of the fourth and fifth fingers.
In light of these findings, the Board concludes that his
right ulnar neuropathy is shown to be manifested by no more
than moderate incomplete paralysis since February 23, 2005.
As such, the preponderance of the evidence is against an
evaluation in excess of 30 percent since that date.
Additionally, the Board has concluded that a separate
evaluation for muscle injury of the right forearm is not
warranted. As noted above, the regulations provide that a
muscle injury rating will not be combined with a peripheral
nerve paralysis rating for the same body part unless the
injuries affect different functions. There is no evidence of
separate functional impairment due to muscle injury. In
fact, the evidence reflects no deficit in any aspect of the
use of the muscles of the forearm, wrist, or hand, and that
the main dysfunction relates to paresthesia due to ulnar
neuropathy. Accordingly, a separate evaluation for muscle
injury of the forearm as a residual of the shrapnel fragment
wound in service is not for application.
ORDER
Entitlement to an evaluation in excess of 10 percent for
residuals of a shell fragment wound of the right (major) arm
with retained foreign bodies is denied.
For the period prior to February 23, 2005, an evaluation in
excess of 10 percent for neuropathy of the right ulnar nerve
is denied.
For the period beginning February 23, 2005, an evaluation in
excess of 30 percent for neuropathy of the right ulnar nerve
is denied.
____________________________________________
MICHAEL LANE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs